11-3861 Malcolm v. Holder BIA A040 089 328 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO**  **A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED**  **AND IS GOVERNED BY FEDERAL RULE OF**  **APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN**  **ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 20 th** **day of September, two thousand twelve.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **PETER W. HALL,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **CARL ANTHONY MALCOLM,** 13 Petitioner**,** 14 15 **v. 11-3861** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Barbara Dominique, The Dominique** 23 **Group, New York, NY.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Linda S. Wernery,** 27 **Assistant Director; William C.** 28 **Minick, Trial Attorney, Office of** 29 **Immigration Litigation, Civil** 30 **Division, United States Department** 31 **of Justice, Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Carl Anthony Malcolm, a native and citizen of Jamaica, 5 seeks review of a September 6, 2011, order of the BIA 6 denying his motion to reopen his removal proceedings. In re 7 Carl Anthony Malcolm, No. A040 089 328 (B.I.A. Sep. 6, 8 2011). We assume the parties’ familiarity with the 9 underlying facts and procedural history of the case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 12 (2d Cir. 2006) (per curiam). In this case, the BIA did not 13 abuse its discretion in denying Malcolm’s motion. 14 An alien raising a claim of ineffective assistance of 15 counsel must substantially comply with the procedures for 16 raising such claims set forth in Matter of Lozada , 19 I. & 17 N. Dec. 637 (BIA 1988).See Jian Yun Zheng v. U.S. Dep’t of 18 Justice , 409 F.3d 43, 46 (2d Cir. 2005). The BIA reasonably 19 concluded that Malcolm did not demonstrate that he notified 20 his former attorney of his allegations against her as 21 required by Lozada , because he did not submit any evidence 22 of such notification. 233 Additionally, the record supports the BIA’s conclusion 1 that Malcolm failed to demonstrate that he was prejudiced by 2 his former attorney’s alleged ineffective assistance. See 3 Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006). Malcolm 4 argues that his attorney should not have conceded before the 5 Immigration Judge (“IJ”) that he was convicted under 6 subsection (1) of NY PENAL LAW§ 120.00. But the BIA 7 reasonably concluded that Malcolm was not prejudiced by his 8 attorney’s concession, because the record of conviction 9 submitted by the government in front of the IJ established 10 that Malcolm’s conviction was under that subsection. 11 Similarly, the BIA reasonably concluded that Malcolm failed 12 to demonstrate that he was prejudiced by his former 13 attorney’s failure to apply for relief under the Convention 14 Against Torture (“CAT”), as Malcolm’s motion to reopen did 15 not establish that he was eligible for CAT relief, because 16 he did not show that any harm he might face from gang 17 violence in Jamaica would occur with the consent or 18 acquiescence of that country’s authorities. See Khouzam v. 19 Ashcroft , 361 F.3d 161, 168-71 (2d Cir. 2004). 20 For the foregoing reasons, the petition for review is 21 DENIED. Any pending request for oral argument in this 224 petition is DENIED in accordance with Federal Rule of 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 2 34.1(b). 3
FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 7